Duckett v. Troester
| Decision Date | 11 May 1999 |
| Docket Number | No. WD,WD |
| Citation | 996 S.W.2d 641 |
| Parties | Natalie DUCKETT, Respondent, v. Crista TROESTER, Appellant. 56214. |
| Court | Missouri Court of Appeals |
Mark T. Kempton, Sedalia, for Respondent.
Michael S. Dodig, Kansas City, for Appellant.
Before: SPINDEN, P.J., and EDWIN H. SMITH and RIEDERER, JJ.
Crista Troester appeals from the circuit court's order granting the respondent, Natalie Duckett, a new trial on her petition for personal injuries. The trial court granted a new trial based on a finding that the appellant had impermissibly injected the issue of insurance into the case.
The appellant raises three points on appeal. She claims that the trial court erred in granting the respondent's motion for a new trial because: (1) the respondent was not prejudiced by her mentioning of insurance in her testimony; (2) she was immune from suit under the doctrine of official immunity; and (3) any recovery by the respondent was barred by the doctrine of implied primary assumption of risk.
We reverse and remand.
The respondent was a student and cheerleader at Central Missouri State University (CMSU). The appellant was the Assistant Athletic Director and Coordinator of Spirit Groups at CMSU. The cheerleading squad was one of the spirit groups for which she was the coordinator. As part of her duties as the coordinator, the appellant was responsible for providing advice and counsel, managing the budget, making travel arrangements, training, designing safety procedures, and developing the style and decorum of the various groups. As the assistant athletic director, she was responsible for managing the insurance program for all of the student athletes on campus. As to the cheerleading squad specifically, the appellant arranged for it to attend summer camps for instruction, met with the squad's captain and coach on a weekly basis, and arranged practice facilities for the squad as requested by the squad's captain and coach.
On September 16, 1993, the cheerleading squad was practicing in the multipurpose building on a rubber-covered concrete floor, with no padding. The squad was attempting to perform a "Kentucky Double High A Pyramid" for the first time. In this stunt, three cheerleaders stand on the bottom to form the base, three stand on the shoulders of the base cheerleaders, and two flyers stand on the forearms of the middle cheerleaders. The respondent was one of the flyers. At some point, the other flyer fell and the pyramid collapsed, with the respondent falling to the floor and hitting her head, sustaining injuries.
On April 8, 1996, the respondent filed a petition for damages against the appellant in the Circuit Court of Johnson County. In her petition, the respondent alleged that the appellant, in her capacity as assistant athletic director and coordinator, was negligent by failing to provide adequate supervision and training for the squad by not providing it a safe place to train and in failing to warn it of the dangers of conducting practices on hard surface floors. She further alleged that as a direct and proximate result of the appellant's negligence she fell ten to fifteen feet, struck her head on the floor, and suffered personal injuries.
On April 17, 1997, the appellant filed a motion for summary judgment claiming that she was entitled to judgment as a matter of law because: (1) she was immune from suit under the doctrine of official immunity; (2) the respondent assumed the risk that resulted in her injury; and (3) she owed no duty to protect the respondent from the dangers that caused her injuries. The motion was overruled by the trial court. The case was tried to a jury beginning on April 8, 1998.
At trial, the respondent introduced evidence of the job description of the appellant. This description indicated, inter alia, that, as assistant athletic director, the appellant was responsible for coordinating the insurance program for student athletes. The job description also indicated that, as the coordinator, the appellant was responsible for training, designing safety procedures, and developing the style and decorum of the groups. During the respondent's testimony, her attorney asked her whether certain of her medical bills had been paid. In response, she testified that she was not sure because she was involved in a dispute with her insurance company.
At the close of the respondent's evidence, the appellant moved for a directed verdict. The motion was denied. She then introduced evidence. During the appellant's testimony on direct, her attorney asked her to explain her job duties as the assistant athletic director. She explained that one facet of her job was coordinating the insurance program for student athletes. The respondent did not object to this testimony. Thereafter, her attorney asked her what assistance students and student athletes received when they were injured while participating in activities on campus. The respondent's attorney objected to this question on the basis that it would inject into the case the issue of whether the respondent's medical bills had been covered by a collateral source. The appellant's attorney informed the court that the appellant had been instructed not to mention the insurance program. The trial court overruled the respondent's objection. However, when the question was read back to the appellant, she stated that "we have insurance as provided," before her attorney could cut her off. He then asked her specifically whether athletic trainers were available to assist the cheerleaders in the event of injury.
At the conclusion of the appellant's testimony, the respondent made an oral motion for a mistrial based on the appellant's reference to insurance. The respondent argued that the appellant had improperly injected the issue of insurance into the case, violating the collateral source rule and prejudicing her thereby. The trial court took the motion under advisement, allowing the trial to proceed. At the close of her evidence, the appellant made a second motion for a directed verdict, which was denied. The case was submitted to the jury on April 10, 1998.
During deliberations, the jury sent a note to the court requesting to see the appellant's job description and asking whether the respondent's medical bills had been paid by insurance. The trial court sent the jury a copy of the job description, but advised that it could not answer the insurance question. Thereafter, the jury returned its verdict assessing 0% fault to the appellant and 0% fault to the respondent. On the docket sheet, the trial court indicated that the jury's verdict was accepted, the jury was discharged, and judgment would be entered accordingly.
On April 27, 1998, the respondent called up for hearing her motion for a mistrial, which had been taken under advisement by the court. The hearing on the motion was held on May 4, 1998. After the hearing, the trial court took it under advisement. As a result, on May 12, 1998, the respondent filed a motion for new trial alleging, inter alia, that the appellant had improperly injected the issue of insurance into the case causing her prejudice. On June 22, 1998, the trial court entered its order sustaining the respondent's motion for mistrial. In its order, the trial court stated its belief that it was improper for the appellant to testify about insurance even after the reference to insurance by the respondent in her testimony.
On July 2, 1998, the appellant filed her notice of appeal to this court as to the order of the trial court granting the respondent a mistrial. Thereafter, on July 24, 1998, the trial court entered an order indicating that its earlier order granting a mistrial was not a final, appealable order, and as such, was granting the respondent's motion for a new trial. The appellant filed her notice of appeal of this order on August 3, 1998. The appeals were subsequently consolidated.
On August 31, 1998, the respondent filed a motion to dismiss the appeal. In her motion, she alleged that no document denominated a "judgment" had ever been filed, thereby depriving this court of jurisdiction pursuant to Rule 74.01 1 and City of St. Louis v. Hughes, 950 S.W.2d 850 (Mo. banc 1997). She further alleged that because no final judgment had been entered in the case, the trial court retained jurisdiction to grant her motion for mistrial on June 22, 1998, and that the granting of a mistrial was not an appealable order. On September 14, 1998, this court entered its order sustaining the respondent's motion to dismiss the appeal in WD 56024 as to the appeal from the order granting a mistrial, finding that the trial court's order granting a mistrial was neither final nor otherwise appealable pursuant to § 512.020. 2 However, the motion to dismiss as to the order granting the new trial was taken with the case.
This appeal follows.
Respondent's Motion to Dismiss the Appeal as to the Order
Before we can address the merits of the appellant's appeal, concerning whether the trial court erred in granting the respondent's motion for a new trial, we must first consider the respondent's motion to dismiss.
In her motion, the respondent contends that we should dismiss the appellant's appeal because the issue raised by her, whether the trial court's order awarding her a new trial was erroneous, was rendered moot by its prior order granting her motion for a mistrial, which was not appealable. See State ex rel. Chastain v. City of Kansas City, 968 S.W.2d 232, 237 (Mo.App.1998) (); Helton Constr. Co. v. Thrift, 865 S.W.2d 419, 422 (Mo.App.1993) (). The record reflects that prior to the trial...
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